Cook on Gas Products Pty Ltd v Kelly [1999] NSWCA 270

New South Wales Court of Appeal CITATION : Cook on Gas Products Pty Ltd v Kelly [1999] NSWCA 270 FILE NUMBER(S) : CA 41055/98 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 26 July 1999

PARTIES : Cook on Gas Products Pty Ltd v Diane Kelly JUDGMENT OF : Mason P at 1; Stein JA at 1; Davies AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7202/97 LOWER COURT JUDICIAL OFFICER : His Honour Judge Garling

COUNSEL : Appellant - P. Webb QC / R. Royle Respondent - J. Waters SOLICITORS : Appellant - Steward Cuddy & Mockler Respondent - Marsdens CATCHWORDS : Use or operation of a motor vehicle; Duty of care; Negligence; Liability Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bennett v Minister of Commmunity Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 CASES CITED: Chappell v Hart (1998) 72 ALJR 1344; [1998] HCA 55 Naxakis v Western General Hospital [1999] HCA 22 Sutherland Shire Council v Heyman (1985) 157 CLR 424 The Wagon Mound (No 2) [1967] 1 AC 617 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Leave to appeal granted; Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41055/98 DC 105/95

MASON P STEIN JA DAVIES AJA

Monday, 26 July 1999

COOK ON GAS PRODUCTS PTY LTD v KELLY JUDGMENT

1 THE COURT: This is an application for leave to appeal from the judgment of a judge of the District Court of New South Wales in which his Honour found that injuries suffered by the opponent, Diane Kelly, had resulted from an accident involving a motor vehicle for the operation of which the claimant, Cook on Gas Products Pty Ltd, was responsible. The trial Judge found that the opponent's own negligence contributed to the accident to the extent of 50%. 2 The claimant is one of a group of companies which trades under the name "Barbecues Galore". The opponent was not employed by the claimant but by a related company. She was the national credit manager of the Barbecue Galore business and had the task of overseeing credit facilities and collections throughout all branches in Australia. The plaintiff worked at the main premises of Barbecues Galore in Auburn. There were a number of buildings, including the main warehouse, situated around a yard. The yard was used for the storage of containers and for the parking of trucks. There was an area where trucks could be loaded. 3 On 21 October 1992, the opponent crossed the yard diagonally from a doorway or entry in one corner towards a doorway or entry in the diagonally opposite corner. There was a pedestrian walkway marked around the perimeter of the yard but it may not have been well marked and it covered areas where trucks might be parked and where there were car parking spaces. The opponent gave evidence that it was common for employees to walk across the yard as she did. The trial Judge found that "employees would cross the yard in all places and at all angles". As the opponent crossed the yard on the day in question, which was dull and overcast, a wind was blowing. When it commenced to rain she increased her gait. Presumably, the wind and the rain caused her to bend over a little and to hold her head down. Without her seeing the object, her head hit a platform or tailgate on the back of the claimant's truck which had been lowered. The bridge of her nose was broken and she lost consciousness. The truck in question was a large, covered van. The platform or tailgate at the rear of the truck had been lowered to a level with the floor of the truck and protruded out some eight feet six inches from the back of the truck. The platform was in a horizontal position. At the time of the accident, the truck was unattended and unguarded. 4 When the tailgate was lowered, two plastic yellow and black flags, which were attached at their top edge, fell downwards. However, the photographs in evidence do not suggest that they would have provided much of a warning. In the photographs the plastic flags did not fall vertically but fell on an angle away from the rear of the tailgate. They were unlikely to draw attention to the edges of the tailgate. 5 The trial Judge concluded that it was not negligent to have the tailgate down as a loading operation was in progress; but he held that the claimant was negligent in that there were steps that reasonably ought to have been taken to prevent the accident such as to put down warnings such as flags or cones to keep pedestrians clear. To have the truck attended would have been another. 6 It was submitted on behalf of the claimant that the platform or tailgate had presented no real risk and that what occurred was a simple accident. It was submitted that, if there was any negligence, the negligence was entirely that of the opponent who failed to watch where she was going. However, a platform projecting behind a truck does present a risk to pedestrians who may expect the space behind the truck to be clear. The truck was not an inactive element in the accident. The tailgate, at least, protruded into the course which the opponent took when crossing the yard. That created a risk, similar to that which would be created if, in a car park, the driver of a truck or utility let down a rear door so that it protruded into the space where pedestrians passed. The risk may have been a small one but it was reasonably foreseeable and was one in respect of which simple precautions should have been taken. 7 The principle to be applied is that laid down by Lord Atkin when delivering the opinion of the Judicial Committee in "The Wagon Mound" (No 2) [1967] 1 AC 617 where his Lordship said at 642-3: " In their Lordships' judgment Bolton v Stone [1951] AC 850 did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. "